Kadria v. Lynch ( 2015 )

13-4617
Kadria v. Lynch
BIA
A078 280 103
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of May, two thousand fifteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 LAHIM KADRIA,
14 Petitioner,
15
16 v. 13-4617
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.1
21 _____________________________________
22
23
24
25
26
27
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 FOR PETITIONER: Michael P. DiRaimondo, Melville, New
2 York.
3
4
5 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
6 General; Jennifer Williams, Senior
7 Litigation Counsel; Lindsay W.
8 Zimliki, Trial Attorney, Office of
9 Immigration Litigation, United
10 States Department of Justice,
11 Washington, D.C.
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
15 review is DENIED.
16 Lahim Kadria, a native and citizen of Albania, seeks
17 review of a November 15, 2013, decision of the BIA denying
18 his motion to reopen. In re Lahim Kadria, No. A078 280 103
19 (B.I.A. Nov. 15, 2013). We assume the parties’ familiarity
20 with the underlying facts and procedural history of this
21 case. We review the BIA’s denial of a motion to reopen
22 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
23 (2d Cir. 2006) (per curiam).
24 It is undisputed that Kadria’s motion was untimely and
25 number barred because it was filed approximately ten years
26 after the agency’s final order of removal, and it is
27 Kadria’s third motion to reopen. See 8 U.S.C.
2
1 § 1229a(c)(7)(C)(i) (providing one motion to reopen may be
2 filed within 90 days of final administrative decision).
3 These time and number limits do not apply if an alien
4 establishes “changed country conditions arising in the
5 country of nationality . . . , if such evidence is material
6 and was not available and would not have been discovered or
7 presented at the previous proceeding.” 8 U.S.C.
8 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
9 We find no abuse of discretion in the BIA’s denial of
10 reopening. Kadria argues that the election of a socialist
11 Prime Minister in 2013 constitutes a material change in
12 conditions in Albania, violence stemming from the election
13 places him in danger, and he would be targeted by socialists
14 if he returns to Albania because he supports the Democratic
15 Party.
16 Kadria challenges the BIA’s determination that his
17 motion to reopen was “not supported with affidavits.” We
18 “presume that [the BIA] has taken into account all of the
19 evidence . . . unless the record compellingly suggests
20 otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
21 315, 337 n.17 (2d Cir. 2006). Although the BIA did not
22 specifically identify Kadria’s own declaration, it states
3
1 only that Kadria fears he would be targeted by the Socialist
2 Party, and that a socialist was elected Prime Minister in
3 2013. These facts were contained in Kadria’s motion and an
4 expert report by Dr. Bernd Fischer, and the election result
5 was mentioned in several articles. Therefore, although the
6 BIA did not expressly reference Kadria’s declaration, its
7 substance was considered. Jin Yi Liao v. Holder, 558 F.3d
8 152, 156 n.3 (2d Cir. 2009) (“The agency is not required to
9 ‘expressly parse or refute on the record each individual
10 argument or piece of evidence offered by the petitioner.’”
11 (citation omitted)).
12 Kadria also generally argues that the BIA’s denial of
13 his motion to reopen was an abuse of discretion. It was
14 not. The BIA reasonably relied on the 2012 State Department
15 report, which made no mention of political violence in
16 Albania. “[A] report from the State Department is ‘usually
17 the best available source of information’ on country
18 conditions.” Xiao Ji Chen, 471 F.3d at 341 (citation
19 omitted). The remaining evidence stated that the Socialist
20 Party won the 2013 election for Prime Minister, and
21 described a single “shootout” during which a Socialist
22 Movement for Integration party activist was killed and a
4
1 Democratic Party candidate was injured. A single shooting
2 does not constitute a material change in conditions. 8
3 U.S.C. § 1229a(c)(7)(C)(ii); Matter of S-Y-G-, 24 I&N Dec.
4 247, 253 (BIA 2007) (comparing conditions at time of merits
5 hearing and those when motion to reopen was filed).
6 Kadria also points to the expert report by Dr. Bernd
7 Fischer as establishing a material change in conditions.
8 This report posits that Kadria had “suffered threats and
9 harm in the past.” However, the BIA reasonably refused to
10 revisit Kadria’s claim of past persecution because it had
11 already been rejected on credibility grounds and there was
12 no basis to disturb the original decision. Paul v.
13 Gonzales, 444 F.3d 148, 155 n.5 (2d Cir. 2006); Kaur v. BIA,
14 413 F.3d 232, 234 (2d Cir. 2005) (per curiam).
15 As to future persecution, the bulk of the Fischer
16 report describes general conditions in Albania, gives a
17 brief history of Albanian politics, and discusses recent
18 Albanian elections without drawing any connection to Kadria.
19 When the report does mention Kadria, it is in conclusory
20 terms. These statements are insufficient to establish a
21 change in conditions that would have a material effect on
22 Kadria’s asylum claim. Jian Hui Shao v. Mukasey, 546 F.3d
23 138, 168-69 (2d Cir. 2008) (discussing how changed
5
1 conditions must relate to the alien’s claim of persecution).
2 In addition, rather than identify a change in country
3 conditions, the report describes “continuing political
4 instability” resulting from Albania’s “communist past.”
5 See Matter of S-Y-G-, 24 I&N Dec. at 253.
6 Kadria’s due process argument also fails. He does not
7 have a due process right in the proceedings. Yuen Jin v.
8 Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008). And, as
9 described above, the BIA considered the evidence before it,
10 and its decision reflects consideration of the facts and
11 arguments raised in support of reopening. Thus, Kadria has
12 not shown prejudice, as required to state a due process
13 claim. Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d
14 Cir. 2007) (“[p]arties claiming denial of due process in
15 immigration cases must, in order to prevail, allege some
16 cognizable prejudice fairly attributable to the challenged
17 process”).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7